ILLINOIS POLLUTION CONTROL BOARD
    March 26,
    1992
    VILLAGE OF NATTESON,
    )
    Complainant,
    v.
    )
    PCB 90—146
    (Enforcement)
    WORLD MUSIC THEATRE,
    )
    JAN
    PRODUCTIONS, LTD. and
    )
    DISCOVERY SOUTH GROUP,
    LTD.
    )
    Respondents.
    ORDER OF THE BOARD
    (by B.
    Forcade):
    On September 12,
    1991,
    the Board issued an order granting a
    motion for reconsideration from World Music Theatre et.
    al.
    (Theatre)
    to reconsider the Board’s August 22,
    1991, order.
    In
    its September 12,
    1991,
    order, the Board noted that the sound
    measurement data and analysis submitted to the Board by Theatre
    failed to show compliance or non—compliance with Section 901.102
    and the Board found several problem areas with the noise report.
    Upon reconsideration, Matteson was given the opportunity to
    request a hearing be held to present evidence on whether future
    sound control was needed and suggest the method of sound control.
    The Board required that the hearing and all post-hearing filings
    be completed by March
    2,
    1992.
    Matteson elected not to request a
    hearing.
    Absent additional evidence on sound control,
    the order
    suggested a possible final
    order setting numerical noise
    limitations and mandating Theatre to perform continuous long-term
    monitoring.
    On March
    2,
    1992, Theatre filed supplemental
    comments.
    On March
    9,
    1992, Matteson filed a response and
    objection to Theatre’s comments.
    Natteson’s response contends that Theatre’s comments should
    not be allowed because it
    is an attempt to offer collateral facts
    and unsupported data into the record, without so much as an
    attempt for leave to do so.
    Further Matteson argues Theatre is
    asserting specious arguments in total disregard for the record
    currently in place.
    Theatre’s comments maintain that Theatre is
    currently not a source of noise pollution,
    there has been no
    demonstration to warrant continuous monitoring and continuous
    monitoring is expensive and not practical.
    The Board notes that Theatre’s March
    2,
    1992,
    filing is
    titled as a comment,
    it does not request any action of the Board
    but rather summarizes the status of the proceeding, presents
    information on noise monitoring and discusses the proposed final
    action.
    The Board’s rules and regulations do not contain a
    provision for the filing of comments in this type of proceeding
    and the Board did not authorize this filing.
    Section 101.242 of
    the Board’s rules and regulations requires that all motions and
    13
    1—457
    2
    responses contain the grounds upon which the motion is made or
    the reason for the responding parties position, the relief sought
    and that facts not in the record be supported by affidavits.
    Theatre’s filing does not satisfy the requirements of a motion or
    response.
    Theatre’s comments attempt to supplement the record by
    presenting factual information from a different proceeding to
    support its argument that continuous monitoring is expensive and
    not practical.
    This testimony is not a part of the record in
    this mat~terand Natteson has been denied the opportunity to cross
    examine the witnesses on the testimony presented.
    In order for
    the facts presented in Theatre’s comment to be considered in this
    proceeding they would need to be presented in an adversarial
    setting by qualified witnesses subject to cross examination.
    Theatre also states that through its experience in operating two
    summers of concerts it is able to control the sound emitted from
    the theater.
    This statement is not supported by any facts or
    affidavits.
    The Board cannot consider this statement or other
    statements
    in Theatre’s comments unless they are supported by
    testimony that has been subjected to cross examination and
    admitted in a proceeding where Mattésori has been allowed to
    present opposing testimony.
    At minimum Theatre’s comments can be
    viewed as an attempt to respond to unresolved issues in this
    matter.
    However, because Theatre’s assertions are not supported
    by the record or affidavit and Matteson was not allowed to cross
    examine or present opposing testimony, the Board cannot consider
    the comments
    in making a final determination.
    Because Matteson did not request a hearing,
    “the Board
    is
    still unable to determine what,
    if any, specific additional sound
    abatement measures are necessary to remedy the noise violations
    and alleviate the noise complaints.” Village of Natteson v.
    World
    Music Theatre
    (September 12,
    1991)
    PCB 90—146,
    ____PCB
    .
    The
    order of September 12,
    1991,
    allowed Matteson to request a
    hearing to address the issues raised in ~hat order,
    a similar
    right was, not extended to Theatre.
    Absent a hearing, Theatre was
    denied an opportunity to respond.
    While Theatre’s filing of
    March
    2 may be improper,
    it does illustrate the fact that
    Matteson was given the opportunity to present additional evidence
    in this matter and Theatre was not provided with the same
    opportunity without filing an additional motion with the Board.
    While Theatre could have filed a motion requesting a hearing or a
    motion for reconsideration of the September 12,
    1991,
    Board
    order,
    it should have been given the same opportunity for a
    hearing as Natteson.
    The Board finds that the Theatre’s March
    2,
    1992,
    filing is
    an unauthorized filing and contains facts not supported by the
    record or affidavits.
    Therefore,
    the Board cannot consider the
    comment in reaching its final order without the information
    in
    the comment being presented at hearing, subjected to cross
    131—458
    3
    examination and opposing testimony.
    The Board also concludes it
    should have allowed Theatre to request a hearing on its own
    behalf to respond to the issue of methods of sound control.
    The
    Board in this order seeks to correct its inadvertent omission
    from its previous order of not allowing Theatre to request a
    hearing.
    Therefore,
    the Board will construe Theatre’s comment as
    a request for hearing and postpone entering a final order,
    allowing time
    for a hearing to be held for Theatre to present
    evidence addressing whether the noise violations still exist and
    the appropriate sound control techniques to be employed to
    eliminate any violations.
    The hearing officer is directed to set this matter for
    hearing at the convenience of the parties.
    Hearing must be
    scheduled within 14 days of the date of this order and completed
    within 60 days of the date of this order.
    ‘
    The hearing officer
    shall inform the Clerk of the Board. of the time and location of
    the hearing at least 40 days in advance of the hearing so that
    public notice of the hearing may be published.
    The Board notes that Theatre will be shortly commencing its
    series of summer concerts and therefore
    a timely resolution to
    this matter is required.
    The hearing officer is instructed to
    conduct the hearing as expeditiously as practical to prevent
    further delay
    in this proceeding.
    To insure completion of
    hearings in
    a timely manner,
    any motions that would cause the
    hearing not to be completed within 60 days must be presented in
    writing to the Board.
    IT IS
    SO ORDERED.
    I, Dorothy Gunn,
    Clerk of the Illinois Pollution Control
    Board,
    hereby certify that the above order was adopted ~
    the
    ~
    day of
    ~
    ,
    1992, by a vote of
    ~-(
    //
    /~7~
    ‘~~-
    ~
    ,~‘
    ‘~
    ,
    /~•
    •-
    Dorothy N. ~nn,
    Clerk
    Illinois Po’Xlution Control Board
    13
    1—459

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